**4. The conception and nature of conformity in domestic sales law**

In fact, conformity is a term with a variable content. In English language, conformity is a noun derived from the verb to conform, meaning "agree with" [4, 5]. From this, it becomes clear that the goods should agree with the terms of the contract for them to be in conformity. In other words, the concept of conformity concerns the difference between the object agreed in the contract and that delivered.

Some particularities of domestic law on the concept of 'conformity of goods' in a sale of goods deserves a careful interpretation and understanding [6]. For instance, rules on conformity under the Uniform Act differ considerably from those in common law and civil law. In fact, subtle distinctions can be between the different kinds of defects of conformity under the different laws. Under civil codes5 as well as under the Uniform Act,6 a hidden defect [*défaut caché*] is distinguished from an apparent defect [*vice apparent*]; the English Sale of Goods Act (SGA) [1893] distinguishes condition7 from warranties8 . Nevertheless, surely merchantability under common law is a similar concept to conformity as the case under UAGCL.

#### **4.1 Conformity requirements under the Act: Material and functional conformity**

The notion of conformity under the Uniform Act is almost identical to that under the CISG9 . The Act views conformity from a dual perspective, that is,

**247**

<sup>11</sup> This is the author's translation.

reproach of being the destroyer of bargains."

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

goods10 [7, 8].

protection"11.

provisions.

material and functional conformity. Whilst material conformity deals with the quality of goods, function conformity on its part focuses on the usefulness of the goods. A recent adoption by the Uniform Act is the condition that goods must conform both materially and functionally before they are judged acceptable by the Act. As such, sellers have to respect this prescription before delivering their

The conditions of quantity, quality, description, packaging, particular purpose, and sample are encapsulated into the concept of conformity in the Uniform Act as

"The seller shall deliver the goods according to the quantity, quality, specification, and packaging provided for in the contract. Where the contract is silent, the seller shall deliver goods in conformity with the purposes for which goods of that nature are generally used, and the goods must match the sample or model which was presented to the buyer by the seller. The seller also must deliver the goods that are packaged according to the usual method of packaging goods of the same nature or failing which, in a manner to ensure their conservation, and

These implied that conditions deserve careful treatment because of the protection that they now offer the buyer of goods, who is almost invariably in a weaker position than the seller. This can be explained by the fact that, most of the times, the seller seems to be the manufacturers of the goods. As a result, these terms protect buyers' interest since they ensure that the purchased goods are neither deficient nor defective. The Act thus makes it clear that any breach of the provisions by either parties shall be interpreted as non-respect of terms of contract. It is important to state that the terms of a contract, which include conditions and warranties, of sale of goods could be implied or expressly stated. It is now clear that the common law principle of *caveat emptor* which used to focus on the buyer now places emphasis on the seller's awareness (*caveat venditor)* [10]. Implied conditions and warranties are not stated by the parties during negotiations or included in a contractual document, but nevertheless form part of the contractual

Implied terms as implied by law are geared to ensuring a minimum of business efficacy12, regardless of the parties' paramount intention to create a workable contractual agreement13. Some contracts of sale are very detailed; the parties deal with all or most eventualities. However, in others, the only element that the parties

The seller is obliged to be conversant with aspects of quality, quantity, specification, and the packaging of goods, which falls within material conformity as well as features linked to functional conformity such as the suitability, purpose, or pur-

Material conformity therefore consists of four elements derived from the

<sup>10</sup> Under French law, the hidden defect element is dealt with under sales law. This is actually effectively

<sup>13</sup> Compare with Lord Tomlin in Hillas & Co Ltd v Arcos [1932] ALL ER 494 at 499: "The problem for a court of construction must always be so to balance matters that, without violation of essential principle, the dealings of men may so far as possible be treated as effective, and that the law may not incur the

deal with is identifying the goods to be sold and the price to be paid.

poses and specificities of the usefulness of goods of similar design.

contract: quantity, quality, description, and packaging.

the purport of the text: Pougoué et al Encyclopedie, above at note 11 at 55.

<sup>12</sup> The Moorcock (1889) 14 PD 64; Lister v Romford Ice Co Ltd [1957] AC 555.

contained in its Article 255 [9]. Article 255 thus states as follows:

<sup>5</sup> Cameroon Civil Code, art 1641; Côte d'Ivoire Civil Code, art 1641.

<sup>6</sup> Uniform Act, art 231.

<sup>7</sup> SGA, sec 11(3) provides that a condition is a major term of a contract, breach of which is considered to go to the root of the contract so as to entitle the innocent party to treat the contract as discharged.

<sup>8</sup> Id, secs 14–15.

<sup>9</sup> CISG, art 35.

#### *Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

*Banking and Finance*

constitute 'goods' within the meaning of Article 234 para. 1. Software is normally embedded in some physical form, such as disks or as part of a package in which it is sold along with computer hardware, that is, computers or computer parts. Therefore, it could be considered as a tangible object capable of it being possible to be transferable. This raises an argument in trying to understand why such an item cannot be considered as a 'good' under the Uniform Act. It could without any doubt be covered by the OHADA Uniform Act because such a good is being able to be transferred to another person in a contract of sale in its physical form. Again, there is probability that a disk be physically defective due to a virus for example. In this

case, the seller should be liable as the seller of a physically defective car.

*commerçant* and not to *non-commerçant*.

from warranties8

Under French law, goods are known as *marchandises*. This simply entails a collection of movable assets forming the subject-matter of a contract of sale. This is actually an element of *fond de commerce*. From this standpoint, there is one clear limit: this meaning will not include any form of immovable property in a contract of sale. Consequently, it can be inferred from the meaning of Article 235 para. 1 UAGCL that it limits the meaning of goods to movable property by its reference to *commerçants*. The meaning of 'sale of goods' limits the very meaning of 'goods'. Also, this would mean that no sale with a non-trader is of a 'good'. The general approach that is adopted under the Uniform Act is to apply the OHADA Uniform Act to the

**4. The conception and nature of conformity in domestic sales law**

difference between the object agreed in the contract and that delivered.

of defects of conformity under the different laws. Under civil codes5

law is a similar concept to conformity as the case under UAGCL.

<sup>5</sup> Cameroon Civil Code, art 1641; Côte d'Ivoire Civil Code, art 1641.

**4.1 Conformity requirements under the Act: Material and functional** 

In fact, conformity is a term with a variable content. In English language, conformity is a noun derived from the verb to conform, meaning "agree with" [4, 5]. From this, it becomes clear that the goods should agree with the terms of the contract for them to be in conformity. In other words, the concept of conformity concerns the

Some particularities of domestic law on the concept of 'conformity of goods' in a sale of goods deserves a careful interpretation and understanding [6]. For instance, rules on conformity under the Uniform Act differ considerably from those in common law and civil law. In fact, subtle distinctions can be between the different kinds

defect [*vice apparent*]; the English Sale of Goods Act (SGA) [1893] distinguishes

The notion of conformity under the Uniform Act is almost identical to that

<sup>7</sup> SGA, sec 11(3) provides that a condition is a major term of a contract, breach of which is considered to go to the root of the contract so as to entitle the innocent party to treat the contract as discharged.

. The Act views conformity from a dual perspective, that is,

a hidden defect [*défaut caché*] is distinguished from an apparent

. Nevertheless, surely merchantability under common

as well as under

**246**

the Uniform Act,6

**conformity**

under the CISG9

<sup>6</sup> Uniform Act, art 231.

<sup>8</sup> Id, secs 14–15. <sup>9</sup> CISG, art 35.

condition7

material and functional conformity. Whilst material conformity deals with the quality of goods, function conformity on its part focuses on the usefulness of the goods. A recent adoption by the Uniform Act is the condition that goods must conform both materially and functionally before they are judged acceptable by the Act. As such, sellers have to respect this prescription before delivering their goods10 [7, 8].

The conditions of quantity, quality, description, packaging, particular purpose, and sample are encapsulated into the concept of conformity in the Uniform Act as contained in its Article 255 [9]. Article 255 thus states as follows:

"The seller shall deliver the goods according to the quantity, quality, specification, and packaging provided for in the contract. Where the contract is silent, the seller shall deliver goods in conformity with the purposes for which goods of that nature are generally used, and the goods must match the sample or model which was presented to the buyer by the seller. The seller also must deliver the goods that are packaged according to the usual method of packaging goods of the same nature or failing which, in a manner to ensure their conservation, and protection"11.

These implied that conditions deserve careful treatment because of the protection that they now offer the buyer of goods, who is almost invariably in a weaker position than the seller. This can be explained by the fact that, most of the times, the seller seems to be the manufacturers of the goods. As a result, these terms protect buyers' interest since they ensure that the purchased goods are neither deficient nor defective. The Act thus makes it clear that any breach of the provisions by either parties shall be interpreted as non-respect of terms of contract. It is important to state that the terms of a contract, which include conditions and warranties, of sale of goods could be implied or expressly stated. It is now clear that the common law principle of *caveat emptor* which used to focus on the buyer now places emphasis on the seller's awareness (*caveat venditor)* [10]. Implied conditions and warranties are not stated by the parties during negotiations or included in a contractual document, but nevertheless form part of the contractual provisions.

Implied terms as implied by law are geared to ensuring a minimum of business efficacy12, regardless of the parties' paramount intention to create a workable contractual agreement13. Some contracts of sale are very detailed; the parties deal with all or most eventualities. However, in others, the only element that the parties deal with is identifying the goods to be sold and the price to be paid.

The seller is obliged to be conversant with aspects of quality, quantity, specification, and the packaging of goods, which falls within material conformity as well as features linked to functional conformity such as the suitability, purpose, or purposes and specificities of the usefulness of goods of similar design.

Material conformity therefore consists of four elements derived from the contract: quantity, quality, description, and packaging.

<sup>10</sup> Under French law, the hidden defect element is dealt with under sales law. This is actually effectively the purport of the text: Pougoué et al Encyclopedie, above at note 11 at 55.

<sup>11</sup> This is the author's translation.

<sup>12</sup> The Moorcock (1889) 14 PD 64; Lister v Romford Ice Co Ltd [1957] AC 555.

<sup>13</sup> Compare with Lord Tomlin in Hillas & Co Ltd v Arcos [1932] ALL ER 494 at 499: "The problem for a court of construction must always be so to balance matters that, without violation of essential principle, the dealings of men may so far as possible be treated as effective, and that the law may not incur the reproach of being the destroyer of bargains."

#### **4.2 An inquiry into the nature of lack of conformity**

#### *4.2.1 Apparent defects*

Article 258 of the Uniform Act raises no difficulty as to defects which would have been apparent on a reasonable examination of the goods by the buyer immediately after delivery. In practical terms, examination by the buyer of any apparent defects to ascertain the seller's obligation operates from the moment delivery has been effected14. After this exercise, the buyer must give notice of a lack of conformity discovered within 1 month from the date of delivery. If he fails to observe these requirements, the buyer will be deprived of his right to claim redress for non-conformity.

#### *4.2.2 Hidden defects*

Moreover, it is advisable that the buyer declares any detected defect observed in a purchased item within a year to enable the seller to make up for any deficiency within his/her competence15. The period of 1 year is enough time for the buyer to notice hidden defect in a purchased good. The foregoing condition notwithstanding, it is necessary to state that the detecting of defect goes beyond according to a timeframe since some goods require immediate inspection and adjustment even before they are sold and bought. In this case, therefore, the buyer gets to understand any hidden defect before the commercial transaction.

However, the detecting of hidden defects is difficult, especially with frozen and canned/tinned goods that are always meticulously packaged. In such cases, there is little or no opportunity for instant or early detection of defects.

The problem raises two complex issues. The first is how to establish the liability of a seller or retailer who sells food products in tin or other sealed container because of the difficulty to identify any injury caused to his customers either from some foreign substance in the can or from unwholesomeness of the food and the second is how to establish the liability of a seller who sells goods with some defects in bulk. In this situation, the seller may not be faulted for such hidden defects owing to the difficulty involved in detecting such defects in bulk goods. These complex situations account for the emphasis of Uniform Act, in relation quality goods, that the seller shall be liable to deliver the goods "in the usual manner" that goods are packaged16.

Examples of such nature regarding the determination of hidden defects in goods can never solve all the problems related to quality. Nevertheless, with the aid of Article 255(2) of the Uniform Act, the intent of the parties can be construed in their agreement. In striving to achieve this purpose, two questions could guide this exercise: The understanding of the contractual provisions defining quality goods as spelt out by Article 255(2) and the usefulness of the goods are two basic conditions that could guide the parties, as the strive to satisfy their intent. An understanding of these conditions would certainly curb misunderstanding with regard to fitness of 'ordinary' use of goods as stated in the contract.

It follows therefore that the nature of the kind of non-conformity that the buyer is expected to reveal are two, namely apparent and hidden defects. This type of test is likely to pose challenges involving goods of varying grades.

**249**

1641). <sup>19</sup> Id, art 283.

*of the purchased good*19.

<sup>17</sup> Sale of Goods Act § 14(2)–(2)(B).

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

**4.3 Different quality test: a matter of interpretation**

necessary to choose between various quality tests.

required by group customers in the market.

A further inquiry into the notion of quality is necessary. This discussion points to the various quality tests the buyer may alleged non-conformity of goods. In fact, this raises a debate in trying to clear the confusion surrounding the basis of the seller's liability for the non-conformity of goods. This discussion, in turn, makes it

Against this background, the Act's default rule in Article 255 para 2 appears narrow and limited in its content and scope. On its face, this provision does not rely on any notion of quality, with the only relevant question seemingly being whether the goods are fit for "the purposes for which goods of the same description would ordinarily be used". In other words, the Uniform Act only seems concerned with whether the goods are fit for their ordinary purposes and not with quality. Rather, quality is a broader notion that may include not only fitness for ordinary purposes, but a number of other aspects such as the goods' physical state and condition, intrinsic qualities and features, safety, durability, appearance, finish, and freedom from minor defects17. It is an undeniable fact that these other aspects of quality could be attributable to the dynamic decisions of individuals and group choices and satisfaction based on information gathering relating to a particular commodity [11]. Further exploration of the problem centres on the considerable evidence that quality variation is greater in group unanimity than in personal preferences over certain goods. Here, the commercial buyer may be inclined to conform and to choose goods

As a general rule under the Uniform Act, conformity of the quality of the goods will be met if and only if the usage criterion is also satisfied18. In fact, the commercial utility of the goods seems to be the guiding rule to the commercial buyer under the Uniform Law in ascertaining the seller's responsibility. This can be best explained by the fact that the utmost preference to the commercial utility of the goods by the commercial is guided by several different ways in which interpersonal influences impact variety-seeking behaviour of consumers [12]. In fact, changing social habits may require merchants to select a variety of items appropriate to the demands of divergent contexts and audiences with the view of acting in conformity with consumers' preferences. Understandably, consumers' individual choices tend to conform to or diverge from the choice of another group of consumers [13]. It follows therefore that the material conformity of the goods to the commercial buyer is guided by individual and divergent preferences of its end users. The result of the non-respect of both material and functional quality or either of the qualities, often insinuates a breach of contract. In a case where the quality is deemed essential, the breach may result in a fundamental breach with *the consequence that the buyer may either ignore the contract or request the total substitution* 

Conversely, many domestic legal systems have used varied notions in ascertaining the ultimate default rule of conformity of the goods in order to safeguard the buyer's satisfaction. Notions of quality such as "average, "merchantable," "acceptable, or "satisfactory quality" have been the measuring yardsticks meanwhile "fitness for an ordinary or a common purpose" is merely one of the components

<sup>18</sup> As per the position in the civil codes of Cameroon (art 1641), Côte d'Ivoire (art 1641) and France (art

<sup>14</sup> Uniform Act, art 257.

<sup>15</sup> Id, art 259. Under CISG, art 39, the time frame is two years: J Huet, Contrats Civilset Commerciaux, Responsabilité du Vendeur et Garantie Contre les Vices Cachés [Civil and commercial contracts: Responsibility of the seller and guarantee against hidden defects] (1987, Litec) at 42.

<sup>16</sup> Uniform Act, art 255(2).

*Banking and Finance*

*4.2.1 Apparent defects*

*4.2.2 Hidden defects*

**4.2 An inquiry into the nature of lack of conformity**

any hidden defect before the commercial transaction.

'ordinary' use of goods as stated in the contract.

is likely to pose challenges involving goods of varying grades.

Responsibility of the seller and guarantee against hidden defects] (1987, Litec) at 42.

little or no opportunity for instant or early detection of defects.

Article 258 of the Uniform Act raises no difficulty as to defects which would have been apparent on a reasonable examination of the goods by the buyer immediately after delivery. In practical terms, examination by the buyer of any apparent defects to ascertain the seller's obligation operates from the moment delivery has been effected14. After this exercise, the buyer must give notice of a lack of conformity discovered within 1 month from the date of delivery. If he fails to observe these requirements, the buyer will be deprived of his right to claim redress for non-conformity.

Moreover, it is advisable that the buyer declares any detected defect observed in a purchased item within a year to enable the seller to make up for any deficiency within his/her competence15. The period of 1 year is enough time for the buyer to notice hidden defect in a purchased good. The foregoing condition notwithstanding, it is necessary to state that the detecting of defect goes beyond according to a timeframe since some goods require immediate inspection and adjustment even before they are sold and bought. In this case, therefore, the buyer gets to understand

However, the detecting of hidden defects is difficult, especially with frozen and canned/tinned goods that are always meticulously packaged. In such cases, there is

The problem raises two complex issues. The first is how to establish the liability of a seller or retailer who sells food products in tin or other sealed container because of the difficulty to identify any injury caused to his customers either from some foreign substance in the can or from unwholesomeness of the food and the second is how to establish the liability of a seller who sells goods with some defects in bulk. In this situation, the seller may not be faulted for such hidden defects owing to the difficulty involved in detecting such defects in bulk goods. These complex situations account for the emphasis of Uniform Act, in relation quality goods, that the seller shall be liable to deliver the goods "in the usual manner" that goods are packaged16. Examples of such nature regarding the determination of hidden defects in goods

can never solve all the problems related to quality. Nevertheless, with the aid of Article 255(2) of the Uniform Act, the intent of the parties can be construed in their agreement. In striving to achieve this purpose, two questions could guide this exercise: The understanding of the contractual provisions defining quality goods as spelt out by Article 255(2) and the usefulness of the goods are two basic conditions that could guide the parties, as the strive to satisfy their intent. An understanding of these conditions would certainly curb misunderstanding with regard to fitness of

It follows therefore that the nature of the kind of non-conformity that the buyer is expected to reveal are two, namely apparent and hidden defects. This type of test

<sup>15</sup> Id, art 259. Under CISG, art 39, the time frame is two years: J Huet, Contrats Civilset Commerciaux, Responsabilité du Vendeur et Garantie Contre les Vices Cachés [Civil and commercial contracts:

**248**

<sup>14</sup> Uniform Act, art 257.

<sup>16</sup> Uniform Act, art 255(2).
